A significant shift in Australian workplace law may be on the horizon. The Victorian Government has announced a proposed statutory right for employees to work from home (WFH) two days a week.
What is Changing?
The proposal involves amendments to the Equal Opportunity Act 2010 (VIC) to make it unlawful to deny an employee the ability to WFH where the role can reasonably be performed remotely.
If enacted, the reform would depart from the current position under the Fair Work Act 2009 (Cth), which provides a limited right to request flexible work arrangements and permits employers to refuse such requests on reasonable grounds.
The legislation has passed and is expected to commence 1 September 2026, with a delayed start of 1 July 2027 for small businesses with less than 15 employees.
There are significant ambiguities surrounding what roles may be categorised as work that “can” be completed from home and the extent to which any exceptions on grounds of supervision, performance or productivity may be relied upon.
Shift from Workplace Law to Anti-Discrimination Law
One of the most significant aspects of the reform is not just the right itself, but where it sits legally. By embedding the entitlement in anti-discrimination legislation rather than industrial relations law, disputes will be handled differently.
Complaints will be referred firstly to the Victorian Equal Opportunity and Human Rights Commission for conciliation. If unresolved, the complaint will be escalated to the Victorian Civil and Administrative Tribunal.
This represents a move away from the Fair Work approach, where disputes are generally assessed with reference to commercial considerations and the practical realities of the workplace.
If the Bill is approved and remains unchallenged, for employers, this shift will be significant. Refusing to allow an employee to work from home may no longer be framed as a routine business decision and instead be treated as a discrimination issue, requiring a higher threshold for justification and formal scrutiny.
Legal and Practical Risks
The proposed right to WFH raises a range of legal and operational risks for employers. WFH can create work health and safety issues, including how to ensure safe home workspaces, what constitutes reasonable oversight, and whether existing WHS frameworks adequately cover remote work. While employers may still refuse WFH arrangements where a role genuinely requires physical presence, any refusal will need to be supported by clear, documented reasons.
While this reform is specific to Victoria, it reflects a broader post-pandemic shift toward flexible work. Notably, no other jurisdiction currently guarantees a fixed number of WFH days by law, making this proposal globally significant.
Industry Response
Business groups have expressed concern about the proposal arguing that it imposes a one-size-fits-all model and that existing federal laws already provide a mechanism for flexible work requests. Small businesses, in particular, have highlighted the administrative and financial burden of compliance, especially in industries where remote work is impractical.
Will this Law be challenged?
Before we start sounding the alarm, it is important to note that these reforms are likely to face constitutional challenges. The Victorian Government refers its powers to make laws on Industrial Relations to the Commonwealth and the legislation itself creates inconsistency between state legislation and the Fair Work Act 2009.
This raises a key issue under s 109 of the Constitution, where any inconsistency between Commonwealth and State/Territory laws means the Commonwealth law will prevail. Where the reforms attempt to regulate matters already governed by the national workplace systems, including employee rights, conditions or flexibility arrangements, they may be inoperative to the extent of any inconsistency. Ultimately, the validity of these reforms will depend on how they are characterised and whether they can operate alongside the federal system without direct conflict.
How M+E can support you
This reform represents a fundamental shift in how workplace flexibility is regulated in Australia. While it promises increased participation, reduced commuting and cost savings for employees, it also introduces new legal risks and operational complexities for employers.
Our Workplace + Conduct team can assist your business to update policies and manage risk in preparation for this new framework.
Please contact Daniel: daniel@morganenglish.com.au
